Discovery Examinations
*This is the 5th blog in our series, The Life of a Personal Injury Case…. From accident to settlement or trial.
If your lawyer has advised that your case may be headed to a discovery examination (aka a discovery hearing), you likely have questions about what this means and how it works. In Nova Scotia, discovery hearings are a key step in the litigation process, governed by the Civil Procedure Rules. Below, we break down what you can expect and how to prepare.
What is a discovery hearing
A discovery hearing is a formal process where testimony is recorded from the parties involved in a lawsuit, and sometimes from other witnesses. This occurs after the lawsuit is filed and relevant documents have been exchanged. As the plaintiff, you are typically the first to be questioned.
Discovery hearings usually take place in a lawyer’s boardroom, either yours or the opposing party’s. While no judge is present, you are under oath, just as you would be in a courtroom. A court reporter will also attend to record (not amplify) everything said during the hearing. At the start, you will be asked to swear on a bible, or other appropriate religious text or affirm to tell the truth.
During the hearing, you are asked questions by a lawyer for the opposing party, and the court reporter records the questions and your answers. If requested, the court reporter will produce a transcript (written record) of everything said in the hearing. Keep in mind: the questions asked of you at discovery may not cover your full story. The opposing lawyer will focus on questions relevant to their case strategy.
The Importance of Truthful and Accurate Answers
Your answers during a discovery hearing are given under oath, so they must be truthful and as accurate as your memory allows. If your answers at trial differ from what you said during discovery, this can damage your credibility.
The opposing party may obtain surveillance footage of you, before or after the discovery hearing. If your testimony at trial conflicts with this evidence or your previous discovery answers, it could be used to challenge credibility and will hurt your case.
Your discovery examination is not a "memory contest." You should give honest, straightforward answers where your memory permits this to be done. If you cannot remember, say so. Do not guess. Where appropriate, qualify your answer, for example when you are answering with an estimate.
Handling Questions and Objections
The lawyer questioning you may ask a wide range of questions, most of which are permissible. If an improper question is asked, your lawyer will object and may instruct you not to answer. If your lawyer does not object, you should answer the question as clearly and accurately as possible.
Undertakings and Follow-Up Requests
During the hearing, the opposing lawyer may request specific documents or information relevant to your case. These requests for information are called Undertakings, and they are recorded by the court reporter. After the discovery hearing, your lawyer will assist you in gathering and providing the requested information.
Sometimes your lawyer may respond to an undertaking request by saying they’ll “take that under advisement,” meaning they’ll review the request after the hearing before deciding whether to provide the information.
Why Discovery Hearings Are Held
Discovery hearings are a crucial part of the litigation process. They allow both sides to gather evidence, understand the other party’s position, and assess the strength of their case.
Discovery hearings play a vital role in the litigation process, particularly in personal injury cases. They are designed to gather information, understand the other party’s position, assess the strength of their case assess credibility, and streamline the trial process. Here are the four main purposes of a discovery hearing:
1. To Learn More About Your Case
For the opposing lawyer, the discovery hearing is their opportunity to meet you and ask questions about your case, beyond what is found in your documents. Medical and employment records rarely tell the full story, and the lawyer will use this time to gain a deeper understanding of your situation and the facts surrounding your claim.
2. To Assess Your Credibility and Demeanour
The lawyer will evaluate your credibility, believability, and likeability; in other words, how you might present in front of a judge or jury. They will observe how you answer questions, your communication style, and whether you remain calm under pressure or can be easily provoked. This helps them assess how you might perform during the trial.
3. To Commit You to Specific Facts
One key goal of the discovery hearing is to have you commit to specific facts. If your testimony at trial differs from what you said during discovery, it could impact your credibility and weaken your case. This is why it’s critical to provide truthful and accurate answers during the discovery hearing.
4. To Obtain Admissions That Support Their Client’s Case
The opposing lawyer will aim to obtain any admissions that could strengthen their client’s position. In some cases, these admissions are unavoidable, as they are the truth. If you have concerns about specific questions you may be asked, it’s essential to discuss them with your lawyer before the discovery hearing begins. Once the hearing starts, you will not be able to speak to your lawyer about the questions you are being asked or your answers.
Six Tips for Your Discovery
Here are six key tips to help you navigate your discovery hearing with confidence:
1. Treat the Discovery Seriously
A discovery hearing is a formal and serious proceeding. While the opposing lawyer may appear friendly, remember that their goal is to challenge your case. Be polite and courteous, but avoid being overly friendly or making jokes, even during "off the record" discussions. Casual remarks or humour can give the impression that you’re not taking your testimony seriously and may inadvertently harm your case.
2. Take Your Time Answering Questions
Don’t rush to answer questions. Take a moment to ensure you understand the question before responding. If a question is unclear, it’s perfectly acceptable to ask for clarification or to have it repeated. If you don’t understand a question, say so—it’s better to seek clarity than to guess.
3. Follow Your Lawyer’s Guidance
Never look to your lawyer during the discovery to ask whether you should answer a question. You must answer all questions if you know the answer, unless your lawyer objects. If your lawyer objects, remain silent and do not attempt to answer or comment. Saying something like "I don’t mind answering" can inadvertently undermine your case.
4. Answer Only What is Asked
Avoid trying to anticipate why the opposing lawyer is asking a particular question. Simply answer truthfully and directly. If you don’t know the answer, say, “I don’t know.” If you don’t remember, say, “I don’t remember.” However, if you repeatedly say you don’t know or can’t recall routine details, it may give the impression that you’re being evasive or not being truthful.
5. Take Breaks When Needed
Take a deep breath! It’s perfectly fine to ask for a break if you need to compose yourself or gather your thoughts. Discovery hearings can be lengthy and emotionally taxing, so don’t hesitate to step away for a moment if necessary. A deep breath and a short pause can help you stay calm and focused.
6. Prepare in Advance
Review documents that are provided by your lawyer. Discuss any questions or concerns you have with your lawyer ahead of the hearing. If there are specific questions you’re worried about, bring them up beforehand to ensure you know how to handle them.
Be sure to confirm the time and location of your discovery hearing and where you’ll meet your lawyer beforehand, especially if the hearing is not at your lawyer’s office.
Dress professionally -- think “job interview” attire -- without sacrificing comfort. You don’t need to wear a suit but should look polished and respectful. While water, coffee and tea are typically available at most law offices, you should bring any other necessary items such as a drink, snacks, lunch, or medication, as hearings can take several hours or even the whole day.
Conclusion
Attending a discovery examination can be stressful but is sometimes necessary to move your case forward. If you have questions or concerns about an upcoming discovery hearing, be sure to discuss them with your lawyer. Their role is to guide and support you through every step of the process. By preparing thoroughly and approaching the process with honesty and care, you can help ensure the best possible outcome for your case.
The lawyers at Carter Simpson are experienced, passionate, and devoted to assisting those who have been injured in motor vehicle collisions and other types of accidents. We will advocate on your behalf to secure the best possible outcome through settlement, discovery examinations and/or trial.
Carter Simpson has prepared this document for information only. It is not legal advice. You should consult Carter Simpson about your unique circumstances before acting on this information. Carter Simpson excludes all liability for anything contained in this document and any use you make of it.